pj mcilvaine & goliath

November 27, 2010

pj mcilvaine & goliath

– by max adams

The day PJ McIlvaine was —

Supposed to be celebrating the baptism of a child, two strangers knocked on her door and informed her, in front of her children, 20th Century Fox was suing her for 15 million dollars. Two hours later, after grilling her with questions for two solid hours, they left her stunned and crying in her living room staring at a business card that stated they were “private investigators.”

PJ is a struggling screenwriter who sells flowers over the phone by day and writes scripts by night. She has two produced credits. She is a recognizable presence on internet screenwriting bulletin boards [“Limama” on Done Deal]. She collected scripts she found [already] posted online and placed them in an online library on a Media Fire web page and made those scripts available to other screenwriters. Free of charge. As an educational tool.

PJ doesn’t have the kind of cash needed to hire an attorney. Like I said, days she works a telephone line selling flowers to make ends meet and nights she writes — fighting to bridge that artist-who-does-art vs. artist-who-gets-paid-for-art gap. In between she is caring for an elderly relative suffering from dementia. In between that she is caring for an infant. She is going to need help. If you can help, please send a small gift donation via :::PayPal::: to pjscriptcooperative@gmail.com — people are putting together a small fund to help PJ retain an attorney.

*special thanks to everyone who has contributed to pj’s legal fund already you know who you are and you rock

I’m a friend of PJ McIlvaine and I want to thank Max Adams for posting this blog entry. It’s a brave thing for her to do. Because it puts Max in opposition to her fellow pro screenwriters who, in the past year or so, have stridently opposed script trading. This was quite evident when John August posted about the Scriptshadow blog and the debate exploded across the internet.

I’d like to discuss some oddities about this case and, frankly, I’m hoping the exposure will attract legal counsel who will help PJ, instead of advising her to file bankruptcy. Because that’s the poor legal advice PJ has received so far.

To my knowledge, this is the first case brought against an individual for the practice known as “Script Trading.” Anyone who reads the court file Max linked above can easily see what triggered this legal blow was the leaking of one in-development script: DEADPOOL. Anyone can also see Fox names 10 unidentified “Does” as co-defendants along with PJ.

On Tuesday, October 12, 2010, screenwriter Rhett Reese confirmed on Twitter that the DEADPOOL script he and screenwriter Paul Wernick had written had been leaked online. (Yes – the screenwriter hired by Fox announced the leak on twitter. I find this odd.)

This exciting “script leak” thrilled comic book fanboys worldwide. A number of revenue-generating blogs and websites reported this news and publically discussed details (spoilers) of this leaked script, including plot and dialogue.

And some of these sites invited readers to download DEADPOOL by providing links to it. A partial list of these sites is below, and it’s only the tip of the iceberg. You can Google “DEADPOOL script leaked download” and see how many hits you get.

However, the one internet location you will NOT find in these Google results is PJ McIlvaine’s Media Fire Script Library.

In fact, if you Google for PDFs of any of the other script titles listed in the Fox Lawsuit against PJ –Aliens, Diehard, Jewel of the Nile, Home Alone, the list goes on — you will not find PJ’s Media Fire Script Library in the results. (Yes, they are suing PJ at the tune of $150K per golden oldie and there are dozens just as old listed in this lawsuit.)

Let’s face it, we can all surmise this lawsuit is really about DEADPOOL. Fox went ballistic when the script was leaked.

– Did PJ McIlvaine scale the walls of Fox and swipe a PDF of DEADPOOL? No.

– Did she review the leaked DEADPOOL script, or publish spoilers about it, on a public blog/website that generates revenue for herself or others? No.

– Did she receive a Fox “Cease & Desist” letter as many of these websites listed below received … NO. NO. NO. And I find this really, really odd.

Now, some speculators online have already put forth the notion that PJ did not receive a C & D because 20th Century Fox could not find a way to contact her. FALSE.

As per the “process servers” who showed up on her doorstep, they located PJ via the message board on the website, Done Deal Pro. During their two-hour interrogation of PJ, these “process servers” presented her with information captured from the Done Deal website. (Note: PJ was questioned by these guys before they gave her a chance to even read the lawsuit and/or contact legal counsel).

Anyone who goes to PJs profile on Done Deal, even non-members, can find PJs email in her profile. An email that includes her surname. Fox, the law firm, the “process servers,” knew exactly who she was and where they could find her.

The questions:

Why did Fox’s Law Firm choose to skip serving a cease and desist letter and instead bring a lawsuit against PJ?

Why did they choose to sue a low-profile individual who keeps a Script Library in a Media Fire Account?

Why did they decide against suing the high-profile, revenue-generating websites which not only linked the DEADPOOL script, but published details about it that remain online today?

Just putting this out there but … I find this type of selective litigation REALLY ODD. Don’t you?

If Fox wanted to establish the first-ever case about online trading of copyrighted scripts, why PJ? Why not these folks:

[*links clipped]

Thanks again to Max for providing a forum to discuss this…

[*Note from Max: sc, I’m taking down the links. While it is true sites have been providing scripts online for over a decade with no complaints from the studios, people who run the sites are freaked right now and likely to do incredibly stupid things if they think they’re being made more high profile than they already are — and the last thing we need happening now is them all turning on each other in some self destructive feeding frenzy. Stick with helping PJ, pointing fingers at other sites just helps Fox go after more people. And hey, thanks for your support and contributions to the thread and the cause, sc, it’s appreciated.]

I’m going to preface this by saying that I’m not supportive of this lawsuit, I’m only adding this remark to clarify something:

All of these aspects are completely irrelevant in US copyright law:

•She doesn’t sell advertising.
•She doesn’t charge a membership fee.
•She doesn’t sell the material.
•She makes it available to other screenwriters for free.
•She only posts scripts already available on other sites online.

Educational use is a *limited* defense but it’s complicated — just saying you are sharing for education doesn’t make it so.

I would contact these people and ask them: “Are you stupid? Seriously? 15 million? Why not 5 billion? Does it look to you I made out like a bandit and produced spectacular revenues? I’m nobody [Hi there, Jean Valjean], why do you come after me? What do you hope to do here?”

On the other hand, and we do live in the world we live in, I would absolutely never use any third party material of which I did not have written proof by the rights holder that it was ok to do so (describing the permitted use).

Fox is a corporation with deep pockets, PJ doesn’t have a snowball’s chance in hell. I would never want to expose myself to something like this.

Isn’t the case now left to be immediately thrown out of court as two gentlemen questioned the defendant under the guise of being court appointed officers, not being advised of her rights before hand, with no previous knowledge of the lawsuit and without legal counsel present? I’m sure I’ve got some flubs in there..I’m in no way a lawyer..but there’s NO WAY private detectives can invite themselves into someone’s home and question that person on an impending case bound for court without serious consent beforehand. FOX would leave themselves open to a counter suit before the case even gets under way.

To add to the list of websites I started above, this one not only still has its script review of DEADPOOL up, it has reproduced some pages of the script.

Why is FOX hands off on this site owner? This type of selective litigation is very suspicious, IMO.

[*Note from Max: sc, I’m taking down that link. While it is true sites have been providing scripts online for over a decade with no complaints from the studios, people who run the sites are freaked right now and likely to do incredibly stupid things if they think they’re being made more high profile than they already are. Stick with helping PJ, pointing fingers at other sites just helps Fox go after more people. And hey, thanks for your support and contributions to the thread and the cause, sc, it’s appreciated.]

Fox has no big court costs, gets a quick decision in lower court, takes an easy two bricks out of the free speech internet and set up an increased uphill battle to the next litigant. Corporate control of courts.

Fox likely doesn’t care if she has any money or not. They want (1) to find out who leaked the Deadpool script and (2) to deter others from posting or commenting on the script.

Bear in mind, these are the same folks who took a hard knock in the Wolverine fiasco, in which a pre-effects cuts of the whole freaking movie was leaked months before the movie came out. When they see “Deadpool leak,” they think of Wolverine.

IANYL, but she needs a lawyer to act as a go-between between her and Fox to figure out what they want to resolve this. The use of the PIs suggests to me they want more information than money — although her remarks to the PIs are admissible in court, Fox looks like bullies for using them, suggesting they had something other than this particular case in mind.

[…] The day PJ McIlvaine was — Supposed to be celebrating the baptism of a child, two strangers knocked on her door and informed her, in front of her children, 20th Century Fox was suing her for 15 million dollars. Two hours later, after grilling her with questions for two solid hours, they left her stunned and crying in her living room staring at a business card that stated they were “private investigators.” This was the first contact PJ ha … Read More […]

I’m going to request here people not post too speculative comments or solicit too speculative comments about Fox’s motives. Facts are fine. Speculation… could put myself and WordPress in an awkward position.

Also, I am clearly supportive of helping PJ. This might indicate too negative responses that are not supportive of helping PJ might not be real welcome around here. You have the right to say whatever you want — on your blog. Not on mine.

Also the U.S. civil law system as it is run now gives too much advantage to plaintiffs suing people who have much less money. Under existing rules, the mere filing of a suit against a defendant who lacks ready access to legal resources is equivalent to summary punishment. Everyone knows that is wrong, but of course no on does anything about it.

Actually, there are some reasons why those facts that you have provided might be relevant.

Under Kelly v. Arriba, a court held that a person or entity could post thumbnails of original images for the purposes of exposing the images, without capitalizing on them, as their use of the images were categorized as “fair use” under federal copyright law.

Calling EFF is great advice. I’ll look into this in more detail if I have time, but as far as I’m concerned, allowing individuals that are your “agents” to misrepresent themselves prior to announcing their agency (with an entity that happens to be suing you) might be violating a few ethical standards that FOX may not want to run afoul of. Additionally, by “showing up” at her door, they may have even led her to believe that they were law enforcement…something that an individual that isn’t an officer of the law cannot do.

Questions to ask:

Did they state their names, occupations, and affiliation with FOX prior to coming in to her home?

Without her having assets or deep pockets, all they are going to get is an industry wide reaction from writers who’ve pulled down and read scripts to further their knowledge on the art of screenplay.

They will likely even get a negative backlash from doing this to someone with no money and for the sole purpose of scaring the community. This is something like all those Limewire suits where people downloaded songs without paying for them and turned around to allow others to download theirs as well.

They mean to use her as an example. Unfortunately, I doubt it will put a dime in their pockets and may even cost them revenue from people who believe this is a cruel and unusual thing to do to someone with a small family and not much livelihood. Some lawyer will take this case gratis just to cut the studio off at the knees and get the publicity.

Okay, I am receiving some very emotional email and posts from people about other sites that share scripts being listed in posts here. The big disclaimer being, “Hey, I didn’t host the script! I just linked to it.” Way to cover your ass and let someone else take the fall while you provide the content access and accrue visitors and traffic because of it.

I’ll say here what I told one person who emailed me:

“Did you make a contribution to help out PJ? I appreciate the difference between hosting and linking. It means you kept your paws clean while using others’ content as links so you could share the content and traffic but get off soft when the heavy hitters showed up. Kind of like working in a cocaine den and saying, Hey I didn’t sell the drugs, I just made my living because other people sold the drugs.”

I’ll go look at the posts but for fuck’s sake, quit being a whiner go send five bucks to the PJ fund. That could have been you.

Exactly what a private investigator can get away with depends on the state. If PJ lives in CA, and the PIs sufficiently misrepresented themselves, they could lose their licenses, face legal sanction, etc… but, not before getting into court.

I’d file a countersuit for harassment. Has Fox officially filed a lawsuit, or did they just send two hired thugs to harass and intimidate PJ? Other than their informing her that Fox intended to do this… was anything actually filed?

If not, then I’d file a suit for harassment, defamation of character, misrepresentation and a few other five dollar words thrown in. If so…. I’d countersue. Go, PJ!

[…] pj mcilvaine & goliath (via celluloid blonde) The day PJ McIlvaine was — Supposed to be celebrating the baptism of a child, two strangers knocked on her door and informed her, in front of her children, 20th Century Fox was suing her for 15 million dollars. Two hours later, after grilling her with questions for two solid hours, they left her stunned and crying in her living room staring at a business card that stated they were “private investigators.” This was the first contact PJ ha … Read More […]

Princess, yes, they filed in federal court for 15 million dollars — the amount comes, I believe, from 100 counts of infringement, 1 for each 20th Century Fox script in the library. So the number is a compilation of individual amounts adding up to 15 mil. And it was a big library. The majority of scripts are produced scripts and the studios have been silently sanctioning distribution of produced scripts for at least 20 years. The rule that was always unspoken was, just don’t distribute scripts before film release. And it is alleged there was an unproduced script in the mix.

The suit in its entirety won’t fly. But, when a corporation goes up against an individual, or just a smaller company, whether or not the suit is valid and grounded, it is immediately a financial hardship to the target because the individual or smaller company has to suddenly free up resources to pay for legal representation. And if there are no resources to free up? Good-bye underdog.

It’s pretty common practice for a large corp to put a small company deemed a possible future competitor out of business just by repeatedly filing frivolous law suits until the smaller company goes under paying lawyers to win cases filed against it frivolously. And that’s a company that actually has resources — those resources are just limited. When it’s a large corporation that decides to squash an individual? The individual better have a slingshot and a good arm because normally, Goliath wins.

I just spend a few hours uploading Deadpool to several torrent sites. Fox can eat shit! 15 Million $ law suit against a young lady. What idiots Fox are and now their script will be everywhere on the Internet..Ha Ha Ha

*Max note, I am removing this poster’s name I don’t want anyone [else] getting in trouble around here but the comment cracked me up.

[…] films to share with other screenwriters to read, learn and use as cultural base for their work is sued by 20th century Fox for 15 million in damages?!?!? One of those “scare the crap out of everyone for using internet” type of cases […]

As a concerned citizen, I just sent an email to the EFF to try to implore them to help out. If you get enough press the campaign to help her representation might turn viral. +1 to starting a kickstarter donation page for the cause. People around the globe do not like the way the content industries have been bullying normal people on the web. As a concerned citizen and fellow movie buff THIS WILL NOT STAND!!!

I agree with FOX studios…kind of. I mean, the scripts are their property, they have every right to do this. And Deadpool has been generating alot of buzz, so it’s a top priority for them. But this lady has been unfortunate. There are alot of sites out there with scripts and reviews that FOX could have gone after, but they chose to bully this poor lady. And I’m no expert but shouldn’t they have warned her first? and told her to take down the scripts?
I hope things work out for her, and they can settle some way or another.

hey- a lil new to this situation-never of it before..only thing compareable would be the equivalent of the RIAA going after file-sharers..What is interesting is the facts that are put out there-the fact that these folks showed up on her doorstep..It just breathes of a hoax-not on her part but on the two “G-Men” who came asking questions..The fact that a motion was filed in 20th Century Fox’s name-is very odd..Why hasn’t Fox come out and made anything public on this??For a situation that isn’t at all between studios but a company vs. individual, I would’ve thought someone in PR would’ve said something by now..Oh and yes she should counter sue and file harrasment as well as a police action against 2oth Century Fox for allowing their overhanded legal dept to get away with “gestapo”like actions against her.I feel there is more to this story than what has been put out-hopefuly she wins..If anything, I don’t know the law in her state but in Md-if someone sues you-its something that is in a civil court and not judicial so if you don’t show up-it gets thrown out.It basically comes down to their word vs yours..No Cops, No Robbers, No Theft, No crime.

[…] Fox is suing a woman for $15 million, because she aggregated various scripts she found online as a resource for screenwriters (like herself) to learn from. The key issue is that apparently one of the many, many scripts she had put together was of a movie […]

In general, can somebody please collect all the scripts PJ is being sued for uploading and toss them with vinaigrette into a Jammie Thomas-Rassett-style ‘Fcuk-you-RIAA’ torrent on TPB, as a way to raise awareness of this issue amongst the digital free speech cognescenti and also, of course, to ram a harsh lesson into Fox and similar scum that the Internet public domain will not be censored, but invariably and permanently escalate publication to punish their regressitardivity?

———

Dear Max,

please pass this along to P.J. McIlvaine, thanks.

In sympathetic legal appreciation of your present predicament I urge you to transcend the personal and approach this politically as another strategic battle in the war for internet freedom versus its subjugation by the ‘powers-that-be’. As an unfortunate pawn now ensnared by the Beastmasters of the Darkside, who is about to be dragged through the nightmarish dungeons of their inquisition prior to the inevitable exemplary martyrdom merely to puff up their lobbyists’ false hypotheses, you should stoically consider how best to exercise your ‘Samson Option’ and maximize enemy damage whilst upon the sacrificial stage. My respectful suggestion is: follow the venerable art of Legal Jujitsu, i.e. employing the ancient counter-intuitive techniques + opponents’ overweight + natural forces to body-slam him into profound regret for his foolhardy aggression – hence, proudly stand to your rightful actions but go ‘pro se’ and defy them a la ultranza, forcing their costs in every possible instance. Explicitly ask the eventual jury for a ‘not guilty’ verdict to nullify the bad law under which you are persecuted. Pursuing this point alone means a Supreme Court challenge on fair trial grounds. If this does not outright succeed (never say die!), as a second best option it is the sure-fire way to achieve an astronomical record-setting contrary damages award at practically no monetary cost to yourself vs. huge ones for them. Then, having played the top hand from a horribly rigged deck and set a worthy precedent for youth to ever emulate, the recommended contingency is to ‘skip for victory’ at the last moment to a jurisdiction with no extradition and generous understanding of political asylum, from whence to enjoy watching the bastards swivel on some real losses doubleplus the embarrassment of having been so skillfully trolled at their own game. Chin up, gonads avanti and do it 4 teh lulz! The Internetz will support you every step of the way on the True Path to Terminally Boning The Man!

PS to Max: If PJ is not entirely up for this kind of bare-knuckle scrap, and the fact that she naively admitted a couple of shit-heel spies into her home and most probably divulged onto presumptive concealed recording devices a veritable truckload of ammunition with which they will happily perforate her seems to indicate she has a lot to learn, (hopefully not *all* the hard way), then it is up to you and her other friends to actively assist the damsel in distress with the necessary testosterone transfusions, taking of bullets for the team, etc. [Oops, just discovered you’re actually a woman, despite the name, but still fairly butch-looking, so carry on disregardless, or just shove an hirstute spare male in this frame]

Anyways, for a healthy start, set up a ‘Legal Support Group’ of trusted friends whose first task is making a best-recollection ‘transcript’ of her home interrogation, it will undoubtedly be of value to a legal professional adviser if/when she retains one and there is the possibility that, unless she explicitly agreed to be recorded, such spies can be legally pursued for criminal wiretapping / tortious privacy invasion and their potential evidence of ‘admissions’ thus suppressed / sealed or otherwise excluded from trial. The LSG should in any case be for sifting, weighing and checking well in advance all info and options on decisions to be made by the defendant, such that the agreed strategy is followed most efficiently.

It is best to have at least two law student-types on legal research, a media-wrangler for PR, a fundraiser wizard, a secretary and one zen master for tea and calmness.

Some Links: When asking for help in qualified manpower, access to online legal info resources, etc., demonstrating some organization and resolve to see things through will assist in obtaining same.

This person charges for scripts – and that’s crossing the line. What PJ did is grey but she is not profiting from this and what exactly is wrong with posting scripts that already have aired or been projected in theaters?

[…] to bridge that artist-who-does-art vs. artist-who-gets-paid-for-art gap,” stated a posting on the Celluloid Blonde blog. “In between she is caring for an elderly relative suffering from dementia. In between that she […]

Oh, well yeah. Donate twice for calling me “butch.” Christ on crack, it is hard enough for a straight girl to get a date in Hollywood.

Aside from that, the post looked well intended if a bit “burn yourselves in effigy to fight the man.”

No one wants to fight here. Everyone would like to work in this town again. If Fox calls off the dogs, we call off the fight. I’m just not going to watch a soft least likely non-malicious target go down in flames as an example because some suit decided he wanted to make an example out of someone who couldn’t fight back. That is not a fun holiday for anyone — except maybe the suit. [eyebrow] Someone has to say something before that can happen. And since I have the biggest mouth, it looks like that someone is me. :::sigh:::

The thing is, they *can’t* offer a reasonable explanation for sending C&Ds to others, but bringing the hammer down on PJ.

They can offer the pale and silly things, like “protecting the idiots who read it but don’t want to know” or “the small number who’ll actually read it and will also not see the movie are costing us millions”… but a GOOD argument?

I strongly suspect that they can’t come up with one, no matter how hard they try. And they don’t seem interested in even trying.

Awwww. Isn’t this just precious. Julie Gray has weighed in on PJ’s plight. And she’s proclaimed it’s “naive” to donate to PJ’s defense fund. And just in case her readers missed the first shot over the bow, Julie emphatizes that PJ is is not her friend. In caps.

Anytime you jump in – to a profession, a new job, a new school – you find out there are the rules and there are the RULES. Common practice here (and in other areas of intellectual property, with few exceptions) is Cease & Desist. Common courtesy says you don’t bully people. Common is no longer as common.
Copyright (and other intellectual property law) was put into place to encourage innovation. Viewing it as an oil well is socially irresponsible. This is part and parcel with extending the time of IP (as Disney has lobbied for) and forcing editing (with threats, not law) of documentaries because someone’s ringtone is heard in the background. Creativity should be cherished. Finding new ways to close off creativity is not a creative act.

I’s a really sad situation. They are making an example of Pj. I’m not a lawyer. But if it went the way everone says and pj didn’t redistribute the script then pj shouldn’t have too much to worry about. I’d definitely get the best legal representation I could get and try to show no ill will was intended. I hope it works out for Pj.

Mark, you are making the mistake most people make. You are assuming you matter. To you, you matter. To a corporation like 20th Century Fox? You don’t. No one is making an example here. That is what the internet community that trades scripts will think though because, well, they, like you, think they matter. But in corporate terms? You really think someone in corporate headquarters is worried about “making an example” or “sending a message” to an industry community that has been selling scripts at $15 per for two decades?

All “corporate” cares about is there is a leak. They want the leak. They don’t care who they hurt to find it, and they don’t wear kid gloves looking for it, they just smash anything that looks easy to see what is left in the rubble. And more than likely it is a somewhat bigger leak than one small screenplay.

Myself, I don’t want to see PJ become part of the rubble. I am kind of fond of her sans massive dents. Have you contributed a gift donation to PJ’s legal fund? Send $5 bucks via paypal to pjscriptcooperative@gmail.com and you might feel less “sad.”

Well … I have theories about “THE LEAK”… Clue #1: One of the writers of the in–dev script twittered on October 12 to confirm his script was leaked. Odd, no? Clue #2 … comic book fanboy sites reviewed the leaked scripts like crazy – the same day – heralding it’s greatnes and pleading to Fox NOT to let it die in development. Some urging it NOT be sanitized down to a PG-13 … or am I simply suffering from extreme suspiciousnes?.

Well we are not talking about the Pentagon Papers here. It is not like scripts sit in vaults guarded by rabid dogs and men with guns. Scripts go out to agencies which in turn send them out to prospective cast members, prospective directors, prospective writers. The term “leak” is melodramatic. A janitor in a mail room could “leak” a script.

I am going to say again, please do not get too speculative in posts here. I appreciate it is supportive but it is problematic.

Also, while supportive posts are great, I don’t think saying “Hey being sued by a major studio could be great for your career!” is going to go over well right now so maybe now is not the time for that.

There’s another on-going script-trading lawsuit filed six months prior to Fox vs McIlvaine. But this one wasn’t launched by a studio; it resulted from infighting between the script traders themselves. Briefly, the owners of a private script-sharing site kicked out one of their members who happened to be a lawyer. So of course the lawyer sued them for 5 million bucks. More here, including all court documents: http://sites.google.com/site/deansolomonversus50does/the-411

PJ is a very wonderful person to meet and know and I have read parts of one of her screen plays and was on the edge of my seat twisting my hands at every turn she made in her script. I can actually imagine how it looked just by reading it. Fox needs to hire her, not sue her. And until they drop this law suit, they will not get another dollar from me, my husband, our five, kids, two grand kids, and our partridge in a pear tree. Go Pattycakes! and please everyone donate to her defense fund!

Well Fox is now going after Media Fire and distributors of Black List scripts. And nobody seems to be talking about separation of rights. See, in a work for hire situation in which Fox hires a writer to write a script, Fox owns publication rights to that script because it was written for hire. But, when a studio purchases original material written by the writer on spec, separation of rights is retained by the writer, the studio has film rights, but the writer retains publication rights. Fox doesn’t actually have a legal claim or case when separation of rights is in effect, which it is for any spec Fox purchased unless a writer ill advisably signed away separation of rights in the purchase agreement — which any good entertainment attorney would tell a writer not to do.

All of which means Fox is now shoving its weight around threatening people over [publication] rights Fox doesn’t legally own. Because a lot of Black List scripts are original works written on spec.